Brisbane buyer Neveen Moussa was searching for a tree-change when she came across what seemed to be an ideal proposition at Tamborine.
To her it was the perfect lifestyle package: goats, chickens, a “turn-key” tiny house, functioning gates, safe electrics, and a property presented in a particular condition.
She signed up the REIQ format $1.58 mil contract to buy the property from Melissa Eather in March 2024 and paid a deposit.
Trouble crept in through post-contract tinkering. Just after signing, Moussa’s solicitor proposed eight additional conditions—price reduction, removal of a pool table, electrical works, insurance follow-ups, lists of chattels, and assurances about the tiny house.
Eather agreed the next day, provided the deal became unconditional, ie provided the buyer waived the building and pest inspection condition. She did.
The buyer on the one hand treated those amendments as critical preconditions—promises that had to be fulfilled before she would hand over the balance purchase price. On the other hand the seller treated them as collateral obligations—important, but not fundamental to settlement.
Moussa attended her pre-settlement inspection and found what she described as a catalogue of defects: goats missing, property unclean, debris left behind, electrical concerns including a cable running to the tiny house, a malfunctioning gate, unresolved septic issues, and missing items from the tiny house. She refused to complete.
Settlement day came and went without any tender of the purchase price.
Eather terminated the contract on the basis of the buyer’s repudiation and reserved her right to recover damages. Moussa sued for specific performance to force the sale to proceed on her terms.
At first instance, Eather won summarily.
The buyer appealed arguing the March amendments were legally “interdependent” with the buyer’s obligation to pay the balance purchase price at settlement.
She argued that because the promises were expressed to be performed “prior to settlement” they must logically condition her obligation to settle.
The buyer further contended that because the amendments were agreed as consideration for her waiving the building and pest condition she should not be forced to complete if those promises were not honoured.
She also asserted that some alleged breaches – particularly electrical and septic issues – went beyond mere inconvenience and were serious issue concerning safety and habitability.
The seller on the other hand pointed to the contract condition that specified what was to be exchanged for the balance purchase price at settlement namely, title documents, keys, and possession. The 18 March amendments contained no such linking language. That they said “prior to settlement” merely fixed timing—not legal dependency.
Some of the buyer’s allegations collapsed entirely under scrutiny. There was no contractual obligation to provide an electrical safety certificate and the electrical work had in substance been done.
Many of the her demands were argued by the seller to have been attempts to impose new, non-contractual requirements at the eleventh hour.
Justice Tom Sullivan in delivering the lead judgment of the court, agreed with the seller’s position. The objective contractual intention—what reasonable parties would understand from the text and structure of the agreement – was as the seller had argued.
Because the breaches were not of essential terms—and did not amount to serious breaches of intermediate terms—Eather remained “ready, willing and able” to perform the contract at settlement. Moussa, by refusing to pay the balance, breached an essential term herself. Put another way, the amendments imposed obligations on the seller, but they were not contractually linked to the buyer’s obligation to pay.
Missing goats, untidy sheds, minor electrical issues, incomplete insurance claims were matters capable of compensation in damages and did not go to the “root of the contract”, which was the transfer of indefeasible title.
The seller’s termination was confirmed to have been lawful. The buyer was left not only without the Tamborine property, but liable for costs and exposed to a damages claim.
Moussa v Eather [2026] QCA 45 Mullins P, Henry J, Sullivan J, 17 March 2026
